H-1B Petition: To Amend or Not Amend

H-1B employers must consider several questions before changing the work location of H-1B employees:

• Where is the new place of employment located?
• Is the new place of employment located in the same MSA as the employee’s current worksite?
• Is the change in place of employment temporary?
• If so, how long is the employee’s services needed there?

If employers are wanting to move their H-1B employees to worksite locations outside the original metropolitan statistical area (MSA) indicated in the LCA, then it must file an amended petition before the employee can start work there. Failure to do so is a violation. This could result in employer penalties and loss of nonimmigrant status for H-1B employees.

Employers should be aware that amended petitions are NOT required when:

•  The H-1B employees are going to a location to participate in employee developmental activity, such as management conferences and staff seminars;
• The H-1B employees spend little time at any one location; or
• The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive (i.e., not exceeding five consecutive workdays for any one visit by a peripatetic worker, or 10 consecutive workdays for any one visit by a worker who spends most work time at one location and travels occasionally to other locations).”

• Non-worksite location. If the H-1B employee is only going to a non-worksite location, an amended H-1B petition is not required. A location is considered to be “non-worksite” if:

o    Short term placement. Under certain circumstances, employers may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA.

o    A move within an MSA. If the H-1B employee moves to a new job location within the same MSA or area of intended employment a new LCA is not required. However, employers must still post the original LCA in the new work location within the same MSA or area of intended employment. This is required regardless of whether an entire office moved from one location to another within the same MSA or if just one H-1B employee moves from one client site to another within the same MSA.

The information provided in this article is intended to help you understand basic issues involved in the immigration process, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.